Commonwealth marine reserves - Legal framework

Environment Protection and Biodiversity Conservation Act 1999

The Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act) provides for the proclamation and management of Commonwealth reserves. Commonwealth reserves proclaimed under the EPBC Act include Commonwealth terrestrial reserves (national parks, botanic gardens) and Commonwealth marine reserves (marine parks, marine reserves and nature reserves).

The Director of National Parks (the Director) is the Statutory Authority responsible for the administration, management and control of all Commonwealth reserves under the EPBC Act. The functions of the Director include the protection, conservation and management of biodiversity and heritage in Commonwealth reserves.

Declaring Commonwealth marine reserves

Under the EPBC Act, the Governor-General of Australia may declare, by Proclamation, an area of sea as a Commonwealth reserve if it is:

  • in a 'Commonwealth marine area' as defined by the Act - generally speaking the area from the seaward boundary of State and Northern Territory coastal waters (normally 3 nautical miles from the territorial sea baseline) to the outer limit of the Exclusive Economic Zone 200 nautical miles from the territorial sea baseline; or
  • outside Australia and is an area that Australia has obligations to protect under an international agreement.

A Commonwealth reserve also includes the seabed and the subsoil (to a depth stated in the Proclamation) in the area of the reserve.

Statutory Process before declaring a Commonwealth marine reserve

The EPBC Act sets out a process to be followed before a Commonwealth reserve can be declared. The process includes:

  1. Publication of a notice inviting public comments on the proposal to declare a Commonwealth reserve, allowing a minimum period of 60 days for comments. The notice must set out the name and area of the proposed reserve, the purposes for which it is declared, the depth of the seabed to be included in the reserve, and the IUCN category to be assigned to the reserve
  2. A report to the Minister responsible for the EPBC Act on the Commonwealth reserve proposal. The report must include any comments received and the Director's views on the comments
  3. The Minister considers the report and, if satisfied a reserve should be established, the Governor-General is advised accordingly.

The Proclamation declaring the area to be a Commonwealth reserve must: name the reserve; state the purposes for which it is declared; state the depth of the seabed under any sea included in the reserve; and, assign the reserve to an IUCN category. A Proclamation may also divide a reserve into zones and assign each zone to an IUCN category (which may differ from the overall reserve category).

A Commonwealth reserve Proclamation is a legislative instrument under the Legislative Instruments Act 2003. The Proclamation must be registered on the Federal Register of Legislative Instruments.

IUCN Categories

To ensure consistency in defining and managing protected areas, the Australian Government has adopted the World Conservation Union's (IUCN) internationally recognised set of seven protected area management categories. These categories have been given legal effect in relation to Commonwealth marine protected areas in the EPBC Act.

Commonwealth marine protected areas - Commonwealth reserves under the EPBC Act - and any zones within them must be assigned to an IUCN Category. With the exception of the Great Barrier Reef Marine Park, Commonwealth marine reserves are assigned one of four IUCN categories.

Commonwealth Marine Reserves IUCN Protected Area Management Categories
Category Name IUCN Category Number Management objective
Strict nature reserve Ia Managed primarily for scientific research or environmental monitoring.
National park II Protected and managed to preserve its natural condition.
Habitat/species management area IV Managed primarily, including (if necessary) through active intervention, to ensure the maintenance of habitats or to meet the requirements of specific species.
Managed resource protected area VI Managed to ensure long-term protection and maintenance of biological diversity with a sustainable flow of natural products and services to meet community needs.

IUCN reserve management principles

The EPBC Act requires that a Commonwealth reserve must be managed in accordance with the Australian IUCN reserve management principles that are prescribed for each IUCN category by the Environment Protection and Biodiversity Conservation Regulations 2000 (EPBC Regulations).

Commonwealth Marine Reserves general administrative principles

1. Community participation

Management arrangements should, to the extent practicable, provide for broad and meaningful participation by the community, public organisations and private interests in designing and carrying out the functions of the reserve or zone.

2. Effective and adaptive management

Management arrangements should be effective and appropriate to the biodiversity objectives and the socio economic context of the reserve or zone. They should be adaptive in character to ensure a capacity to respond to uncertainty and change.

3. Precautionary principle

A lack of full scientific certainty should not be used as a reason for postponing measures to prevent degradation of the natural and cultural heritage of a reserve or zone where there is a threat of serious or irreversible damage.

4. Minimum impact

The integrity of a reserve or zone is best conserved by protecting it from disturbance and threatening processes. Potential adverse impacts on the natural, cultural and social environment and surrounding communities should be minimised as far as practicable.

5. Ecologically sustainable use

If resource use is consistent with the management principles that apply to a reserve or zone, it should (if it is carried out) be based on the principle (the principle of ecologically sustainable use) that:

(a) natural resources should only be used within their capacity to sustain natural processes while maintaining the life support systems of nature; and

(b) the benefit of the use to the present generation should not diminish the potential of the reserve or zone to meet the needs and aspirations of future generations.

6. Transparency of decision making

The framework and processes for decision making for management of the reserve or zone should be transparent. The reasons for making decisions should be publicly available, except to the extent that information, including information that is culturally sensitive or commercial in confidence, needs to be treated as confidential.

7. Joint management

If the reserve or zone is wholly or partly owned, by Aboriginal people, continuing traditional use of the reserve or zone by resident indigenous people, including the protection and maintenance of cultural heritage, should be recognised.

Developing management plans for Commonwealth marine reserves

Under the EPBC Act all Commonwealth reserves (terrestrial and marine) must have a management plan. Management plans are prepared by the Director of National Parks, with public input, and approved by the Environment Minister. The plans provide for the protection and conservation of the reserve. They must set out how the reserve is to be managed, what activities will be allowed within the reserve and how they must be carried on. Management must be consistent with the relevant Australian IUCN Reserve Management Principles . Management Plans have a maximum life of 10 years.

The EPBC Act prohibits some activities being carried on in a Commonwealth reserve unless they are expressly provided for by a management plan for the reserve or are approved in writing by the Director of National Parks when a management plan is not in operation. They include actions that affect native species, commercial activities and mining (including oil and gas) operations. A management plan can provide for actions affecting native species and commercial activities to be carried on under a permit issued by the Director of National Parks. Other activities are prohibited by the EPBC Regulations unless they are authorised by a permit issued by the Director of National Parks, or carried on in accordance with a management plan.

Statutory Process for the Development of a Management Plan

  1. The Director of National Parks publishes a notice in the Gazette and in a daily newspaper inviting comment for a minimum period of 30 days on the proposal to prepare a draft management plan.
  2. The Director of National Parks prepares the draft management plan.
  3. In preparing a management plan and in addition to the protection, conservation and management of the reserve values, the Director must take into account a range of matters including the interests of Traditional Owners and other Indigenous interests and of any person with prior usage rights that existed immediately before the reserve was declared.
  4. The Director of National Parks provides the Environment Minister with the draft management plan, the public comments on the draft plan and the views of the Director on the public comments .
  5. The Environment Department prepares a Regulatory Impact Statement for the Office of Best Practice Regulation examining any impacts on business of the proposal to declare the reserve (if required).
  6. The Minister considers the draft plan and the Director's views and, if satisfied, approves the management plan (subject to any amendments the Minister considers necessary).
  7. The plan is tabled in both Houses of the Parliament together with any comments, views, reports or recommendations that have not been given effect to in the plan.
  8. Once registered on the Federal Register of Legislative Instruments (FRLI) the plan comes into effect on the date specified in the Management Plan (noting the management plan is subject to disallowance by the Parliament).